HC/E/USs 99
UNITED STATES - STATE JURISDICTION
United States District Court of Ohio
Appellate Court
ITALY
UNITED STATES - STATE JURISDICTION
12 March 1997
Final
Habitual Residence - Art. 3 | Human Rights - Art. 20 | Issues Relating to Return
Appeal dismissed, return ordered
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When determining habitual residence a trial court must ascertain whether the child has been physically present in any particular place for a sufficient length of time to gain a sense of acclimatization and obtain a degree of settled purpose. With regard to a child of tender years a court should also consider the "overtly stated intentions and agreements of the parents" during the period preceding the wrongful abduction or retention.
In the instant case the child's sole place of habitual residence prior to her retention was Italy; her occasional visits to the United States did not alter this habitual residence.
The court rejected the mother's arguments that the trial court's failure to apply the "best interest" test violated the child's constitutional rights to due process and equal protection.
The court noted that the possibility of an abducting parent facing criminal sanctions in the child's State of habitual residence is not a defence under the Hague Convention. Further, the minor child may be returned to Italy without the mother also returning to Italy. The record revealed that the father had testified that he would drop all criminal charges against the mother if she and the child returned to Italy.
The trial judge erred by ordering the child to be returned to the applicant father rather than to her country of habitual residence. The Convention provides solely for the "return of the child": Article 6(f), 8, 12. The determination of which parent will be awarded temporary custody during the pendency of any custody action is to be determined by the courts of the child's State of habitual residence.
Other US decisions where arguments on the basis of Article 20 have been rejected include:
Freier v. Freier, 969 F. Supp. 436 (E.D. Mich. 1996) [INCADAT Reference: HC/E/USf 133];
Caro v. Sher, 296 N.J. Super. 594, 687 A.2d 354 (Ch. Div. 1996) [INCADAT Reference: HC/E/USf 100];
Janakakis-Kostun v. Janakakis, 6 S.W.3d 843 (Ky. Ct. App. 1999), pet. for cert. filed, 68 U.S.L.W. 3598 (Mar. 8, 2000) [INCADAT Reference: HC/E/USf 320];
Escaf v. Rodriquez 200 F. Supp. 2d 603 (E.D. Va., 2002) [INCADAT Reference: HC/E/USf 798].
The interpretation of the central concept of habitual residence (Preamble, Art. 3, Art. 4) has proved increasingly problematic in recent years with divergent interpretations emerging in different jurisdictions. There is a lack of uniformity as to whether in determining habitual residence the emphasis should be exclusively on the child, with regard paid to the intentions of the child's care givers, or primarily on the intentions of the care givers. At least partly as a result, habitual residence may appear a very flexible connecting factor in some Contracting States yet much more rigid and reflective of long term residence in others.
Any assessment of the interpretation of habitual residence is further complicated by the fact that cases focusing on the concept may concern very different factual situations. For example habitual residence may arise for consideration following a permanent relocation, or a more tentative move, albeit one which is open-ended or potentially open-ended, or indeed the move may be for a clearly defined period of time.
General Trends:
United States Federal Appellate case law may be taken as an example of the full range of interpretations which exist with regard to habitual residence.
Child Centred Focus
The United States Court of Appeals for the 6th Circuit has advocated strongly for a child centred approach in the determination of habitual residence:
Friedrich v. Friedrich, 983 F.2d 1396, 125 ALR Fed. 703 (6th Cir. 1993) (6th Cir. 1993) [INCADAT Reference: HC/E/USf 142]
Robert v. Tesson, 507 F.3d 981 (6th Cir. 2007) [INCADAT Reference: HC/E/US 935].
See also:
Villalta v. Massie, No. 4:99cv312-RH (N.D. Fla. Oct. 27, 1999) [INCADAT Reference: HC/E/USf 221].
Combined Child's Connection / Parental Intention Focus
The United States Courts of Appeals for the 3rd and 8th Circuits, have espoused a child centred approach but with reference equally paid to the parents' present shared intentions.
The key judgment is that of Feder v. Evans-Feder, 63 F.3d 217 (3d Cir. 1995) [INCADAT Reference: HC/E/USf 83].
See also:
Silverman v. Silverman, 338 F.3d 886 (8th Cir. 2003) [INCADAT Reference: HC/E/USf 530];
Karkkainen v. Kovalchuk, 445 F.3d 280 (3rd Cir. 2006) [INCADAT Reference: HC/E/USf 879].
In the latter case a distinction was drawn between the situation of very young children, where particular weight was placed on parental intention(see for example: Baxter v. Baxter, 423 F.3d 363 (3rd Cir. 2005) [INCADAT Reference: HC/E/USf 808]) and that of older children where the impact of parental intention was more limited.
Parental Intention Focus
The judgment of the Federal Court of Appeals for the 9th Circuit in Mozes v. Mozes, 239 F.3d 1067 (9th Cir. 2001) [INCADAT Reference: HC/E/USf 301] has been highly influential in providing that there should ordinarily be a settled intention to abandon an existing habitual residence before a child can acquire a new one.
This interpretation has been endorsed and built upon in other Federal appellate decisions so that where there was not a shared intention on the part of the parents as to the purpose of the move this led to an existing habitual residence being retained, even though the child had been away from that jurisdiction for an extended period of time. See for example:
Holder v. Holder, 392 F.3d 1009 (9th Cir 2004) [INCADAT Reference: HC/E/USf 777]: United States habitual residence retained after 8 months of an intended 4 year stay in Germany;
Ruiz v. Tenorio, 392 F.3d 1247 (11th Cir. 2004) [INCADAT Reference: HC/E/USf 780]: United States habitual residence retained during 32 month stay in Mexico;
Tsarbopoulos v. Tsarbopoulos, 176 F. Supp.2d 1045 (E.D. Wash. 2001) [INCADAT Reference: HC/E/USf 482]: United States habitual residence retained during 27 month stay in Greece.
The Mozes approach has also been approved of by the Federal Court of Appeals for the 2nd and 7th Circuits:
Gitter v. Gitter, 396 F.3d 124 (2nd Cir. 2005) [INCADAT Reference: HC/E/USf 776];
Koch v. Koch, 450 F.3d 703 (2006 7th Cir.) [INCADAT Reference: HC/E/USf 878].
It should be noted that within the Mozes approach the 9th Circuit did acknowledge that given enough time and positive experience, a child's life could become so firmly embedded in the new country as to make it habitually resident there notwithstanding lingering parental intentions to the contrary.
Other Jurisdictions
There are variations of approach in other jurisdictions:
Austria
The Supreme Court of Austria has ruled that a period of residence of more than six months in a State will ordinarily be characterized as habitual residence, and even if it takes place against the will of the custodian of the child (since it concerns a factual determination of the centre of life).
8Ob121/03g, Oberster Gerichtshof [INCADAT Reference: HC/E/AT 548].
Canada
In the Province of Quebec, a child centred focus is adopted:
In Droit de la famille 3713, No 500-09-010031-003 [INCADAT Reference: HC/E/CA 651], the Cour d'appel de Montréal held that the determination of the habitual residence of a child was a purely factual issue to be decided in the light of the circumstances of the case with regard to the reality of the child's life, rather than that of his parents. The actual period of residence must have endured for a continuous and not insignificant period of time; the child must have a real and active link to the place, but there is no minimum period of residence which is specified.
Germany
A child centred, factual approach is also evident in German case law:
2 UF 115/02, Oberlandesgericht Karlsruhe [INCADAT Reference: HC/E/DE 944].
This has led to the Federal Constitutional Court accepting that a habitual residence may be acquired notwithstanding the child having been wrongfully removed to the new State of residence:
Bundesverfassungsgericht, 2 BvR 1206/98, 29. Oktober 1998 [INCADAT Reference: HC/E/DE 233].
The Constitutional Court upheld the finding of the Higher Regional Court that the children had acquired a habitual residence in France, notwithstanding the nature of their removal there. This was because habitual residence was a factual concept and during their nine months there, the children had become integrated into the local environment.
Israel
Alternative approaches have been adopted when determining the habitual residence of children. On occasion, strong emphasis has been placed on parental intentions. See:
Family Appeal 1026/05 Ploni v. Almonit [INCADAT Reference: HC/E/Il 865];
Family Application 042721/06 G.K. v Y.K. [INCADAT Reference: HC/E/Il 939].
However, reference has been made to a more child centred approach in other cases. See:
decision of the Supreme Court in C.A. 7206/03, Gabai v. Gabai, P.D. 51(2)241;
FamA 130/08 H v H [INCADAT Reference: HC/E/Il 922].
New Zealand
In contrast to the Mozes approach the requirement of a settled intention to abandon an existing habitual residence was specifically rejected by a majority of the New Zealand Court of Appeal. See
S.K. v. K.P. [2005] 3 NZLR 590 [INCADAT Reference: HC/E/NZ 816].
Switzerland
A child centred, factual approach is evident in Swiss case law:
5P.367/2005/ast, Bundesgericht, II. Zivilabteilung (Tribunal Fédéral, 2ème Chambre Civile) [INCADAT Reference: HC/E/CH 841].
United Kingdom
The standard approach is to consider the settled intention of the child's carers in conjunction with the factual reality of the child's life.
Re J. (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, [1990] 2 All ER 961, [1990] 2 FLR 450, sub nom C. v. S. (A Minor) (Abduction) [INCADAT Reference: HC/E/UKe 2]. For academic commentary on the different models of interpretation given to habitual residence. See:
R. Schuz, "Habitual Residence of Children under the Hague Child Abduction Convention: Theory and Practice", Child and Family Law Quarterly Vol 13, No. 1, 2001, p. 1;
R. Schuz, "Policy Considerations in Determining Habitual Residence of a Child and the Relevance of Context", Journal of Transnational Law and Policy Vol. 11, 2001, p. 101.
Where a removal or retention is established as being wrongful and less that 12 months have elapsed before the commencement of the return proceedings, then Article 12(1) provides that the child shall be returned forthwith. This is designed to give effect to the goal of restoring the pre-abduction situation as quickly as possibly. However questions sometimes arise as to the modalities of return and whether, if at all, time should be allowed to make preparations or to allow the child finish the school term. Practice varies on this issue.
United States of America
Sampson v. Sampson, 267 Kan. 175, 975 P.2d 1211 (Kan. App. 1999), [INCADAT cite: HC/E/USs 226].
The trial court gave the mother 90 days to submit herself and the children to the jurisdiction of the Israeli courts.
In other cases the concept of the return 'forthwith' of a wrongfully removed or retained child has been interpreted much more strictly, see:
France
Procureur de la Rèpublique c. Bartège, 27 June 1994, transcript, Montpellier Court of Appeal [INCADAT cite: HC/E/FR 63];
New Zealand
Fenton v. Morris, 28 July 1995, transcript, New Zealand District Court at Wellington [INCADAT cite: HC/E/NZ 249];
United Kingdom - Scotland
D.I. Petitioner [1999] Green's Family Law Reports 126, [INCADAT cite: HC/E/UKs 352].
The trial judge held that the meaning of the term ‘return forthwith' depended on the circumstances of the case. It was agreed by the parties that the original time of two days was unrealistically short and a figure of seven days was agreed instead.
It has equally been noted that a return forthwith may no longer be appropriate where excessive delay has occurred since the commencement of the return proceedings:
United Kingdom - England & Wales
Re D. (A Child) (Abduction: Foreign Custody Rights) [2006] UKHL 51, [2007] 1 A.C. 619, [INCADAT cite: HC/E/UKe 880] : almost 4 years had elapsed since the arrival of the child.
Preparation of INCADAT commentary in progress.